Aww what might have been.

Recall that big ($925MM) TCPA judgment against ViSalus–how can you forget?

Arguably the most interesting part of the entire saga was when the FCC granted ViSalus’ petition for a waiver of express written consent rules after the jury had already entered its massive verdict. That seemingly infused a massive (and individualized) defense right into the heart of the case meriting both decertification and a new trial. 

But when ViSalus took the huge win to the trial court, the Court refused to set aside the verdict or decertify the case finding, in essence, that ViSalus had waived the right to rely on the FCC’s waiver by failing to assert the defense in the case. Holy smokes what a loss.

Well back when it seemed like the ViSalus judgment might evaporate in their hands, Class Counsel filed a petition with the FCC to re-consider the waiver it granted in ViSalus’ favor. That petition must have seemed extremely high stakes at the time, but given the trial court’s finding of waiver it ended up being pretty much irrelevant.

Well today–in a true “what might have been” moment for Visalus– the FCC refused to set aside or reconsider its earlier ruling affording ViSalus a waiver of its express consent rules. The ruling is here: FCC Visalus Order

Ironically the FCC found that Plaintiff had waived her right to object to the ruling by failing to comment on the original petition– a lesson to all of you out there that elect not to comment on pending petitions seeking critical relief.

And, in a portion of the ruling that might have broad impact for litigants, the FCC also found that the Plaintiff could not challenge the ruling because she was not aggrieved by it– the ruling only afforded ViSalus the right to rely on inadequate written consent, not to call without any consent. Yet Plaintiff contended that ViSalus had no consent, so the waiver did not impact her individual claim.

That the ruling did–or c/should have–have a massive impact on the claims of class members the Plaintiff was seeking to represent had no impact. So, interestingly, today’s FCC ruling means that a Plaintiff lacks standing to challenge an FCC ruling that impacts only the claims of unnamed class members if the underlying ruling does not directly impact the claims of the class representative. Store that one away for safe keeping.

But, at the end of the day, today’s big FCC ruling for ViSalus is really just salt on a wound. Since the trial court has already determined the FCC’s waiver order has no impact on the proceeding, today’s ruling upholding the waiver order just preserves a victory that never was.